When you look at the literature on negotiating, you tend to find (at least) two schools of thought. One, exemplified by Fisher and Ury’s Getting to Yes and its progeny, is a “win-win” approach that emphasizes communication and exploration of parties’ underlying interests. The other is more of a “win-lose” philosophy that emphasizes getting the upper hand in negotiations and gaining profits for one side at the expense of the other. Some have labeled these as “soft” or “hard” approaches to negotiation.

Before trying to evaluate which approach to negotiation has more validity, I should note that there is some overlap between the two camps. An interest-based bargainer might say that being mindful of the other side’s interests does not require you to sacrifice your own for the sake of a deal. Thus, it is not inconsistent with interest-based bargaining to make efforts to get the best deal you can. On the other side, even the hardest of hard-boiled negotiators tend to recognize that the deal has to have some value for the other side, otherwise they will not enter into it, or they will not be able to perform it down the road. Lots of negotiators favor combinations of the two methods, following the time-honored “good cop-bad cop” technique.

One of the claims to fame of our new president is that he is an expert negotiator. He brags about his deal-making prowess, he has written books on the topic of negotiation; and his campaign was based in large part on promises to negotiate better deals for this country, especially on trade. President Trump’s ideas about negotiating decidedly fall into the second camp. Admiring his tough talk, Trump’s supporters believe he will get better terms from our trading partners, and dissuade companies from moving factories overseas, while Trump’s detractors see him as a bully who will exacerbate rather than resolve conflict. Trump himself talks a lot about “winning.”

President Obama, on the other hand, obviously exemplifies the “softer” approach that tends to be favored by mediators. He talks about finding consensus, and working together with people of different views to create constructive solutions. I have always thought of Obama as a mediator or conciliator himself, not as someone attempting to impose his will on others. I believe his style accounted for a lot of his successes, but he faced criticism from both supporters and opponents for not being “tough” enough. (At times, however, when Obama’s opponents weren’t complaining about how weak he was, they were attacking him for being dictatorial.)

This highly-charged election season can be seen in part as a referendum on negotiating philosophy. We are obviously deeply divided on this question, but it might be comforting to know that it is an issue more of style than substance. (Not that there aren’t issues of substance that also divide us, but I’m not talking about those right now.) The country has now been jolted into an abrupt shift from one style to another, and the transition has been far from smooth. It remains to be seen, of course, how successful the “tough” approach to negotiating will prove.

Trump can already point to signs of success in getting companies to back down from plans to shift operations to other countries. He has hit some bumps, on the other hand, in negotiating with Mexico on who will pay for the planned border wall. Trump’s speeches boasting that he would make Mexico pay may have gone down well with supporters, but this kind of talk was probably humiliating to Mexico, and has only intensified their opposition to the idea. To save face, Mexico’s president has already canceled a meeting with the new president. And President Trump has somewhat softened his tone, now arguing that building the wall would be in Mexico’s interests as much as ours. (Imagine Donald Trump, acting considerate of the opposing party’s interests!) Trump says that he believes that torture works, but he also said he will defer to the new Secretary of Defense, who thinks he can get more out of a detainee with a couple of beers and a pack of cigarettes than by resorting to water torture. So stay tuned, and we’ll find out how tough the tough talk really is, and how well it is working.

2 Comments

However, I would say it's a bit worse than just a 'hard' negotiating style which can be of course be a smart choice in some circumstances provided that it is rooted in principle or objective criteria. I think the distinction can be better described as one of positional bargaining vs principled negotiation. Basically, Trump seems to adopt a position and then stubbornly digs in e.g. we'll build a wall and make mexico pay for it. I'm not sure this can be called negotiation at all – it's much closer to haggling in its lack of sophistication and effectiveness.

An alternative way of thinking about it is that Trump is using simple conflict narratives. Research at the Harvard Negotiation Project has specifically studied this and found that 'complexifying' a conflict story is actually a much more effective negotiation technique. You can listen to one of the Harvard Professors talk about this here: https://mediatoracademy.com/topic/difficult-conversations/conflict-narrative/

I could go on but the point is, the study of negotiation has made significant strides in the last few decades. Trump does not understand the first thing about negotiation in the modern sense and consistently ignores all the fundamental, well researched and proven principles that are learned by mediators and indeed any negotiator in the modern world.

Thanks John for helping to flesh out my usual over-simplified discussion of a topic. Look forward to your comments on part 2, which I just posted. Trump is sure to provide a lot of fresh fodder for my blog, as Obama did.

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Joseph C. Markowitz

Joseph C. Markowitz has published this blog, focusing on mediation and other forms of conflict resolution, since 2009. Mr. Markowitz practices law under the name "Law Offices of Joseph C. Markowitz," sharing space with three other attorneys in downtown Los Angeles. He has been in practice since 1980, emphasizing employment law, intellectual property, and general business disputes. Mr. Markowitz was trained as a mediator in 1994, and has served on one state court and two federal court mediation panels, in addition to handling private mediations. He also served as president of the Southern California Mediation Association in 2014.

For more information about Mr. Markowitz’s law and dispute resolution practice, go to jcmarkowitz.com